No decision yet from tribal court on recall election

A decision has not yet been made from the Little Traverse Bay Bands of Odawa Indians’ Tribal Court with regard to potentially halting a recall election for its two top officials.

On March 24, both Ken Harrington and Dexter McNamara, tribal chairman and vice chair, filed separate lawsuits in tribal court against the tribe’s election board for several issues, one of which included the board’s decision to validate recall petitions for both officials during a special meeting March 2, setting in motion a recall election.

During a motion hearing Wednesday in tribal court, Harrington and McNamara requested of separate judges — Jenny Lee Kronk and JoAnne Gasco — that a preliminary injunction be issued in each of their cases, halting the recall election which is currently scheduled for May 28.

In addition, both officials are asking the tribal court to issue a permanent injunction, after a full trial in each case, which would void the recall petitions and permanently cancel the recall election.

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According to Harrington’s complaint, a copy of which was provided to the News-Review Wednesday by Craig W. Elhart, attorney for both tribal officials, Harrington is arguing two main points — that the recall petitions for himself, as approved by the election board, do not clearly state the reason for his recall; and that the 184 signatures verified by the election board show “substantial irregularities ... calling into question the authenticity of the signatures.”

With regard to the reasoning behind his recall, Harrington’s complaint states: “The recall petitions, as approved by the (election board), do not set forth any reasons for the recall. As such (Harrington) is left to guess what conduct he may have engaged in that is subjecting him to recall ... as such, anyone asked to sign the petition has no basis to make an informed decision as to whether (Harrington) should be recalled or not.”

Harrington’s complaint also addresses the 184 verified signatures for his recall petition, many of which he believes are fraudulent because the hometowns of people signing on the same dates are hundreds of miles away, and that tribal enrollment numbers and birth dates are not included for every person.

The complaint states: “Based on the challenges set forth ... there is substantial evidence that the recall petition did not contain 172 valid signatures, and therefore, is not a valid recall petition.”

Prior to his motion hearing Wednesday, Harrington and his attorney, Elhart, filed an affidavit of prejudice against Judge Kronk, requesting that she step aside in the case and allow another judge to take over.

The affidavit stated that Michelle LaCount, office manager for the legislative leader, and Allie Maldonado, assistant legal council for the tribe, would testify that Law and Kronk had a close relationship which included spending long hours in each others offices while Law was legislative leader, as well as dining together.

Based on these allegations, Harrington stated in the affidavit that: “Based on the following facts ... I believe that Judge Kronk has, or is very likely to show a bias against me.”

Kronk denied the allegations and moved forward with Harrington’s case. At the conclusion of Wednesday’s hearing, she informed both Harrington and Elhart, as well as Denise Petoskey, chairperson of the tribe’s election board, and Carlos Alvarado-Jorquera, attorney for the election board, that she would issue her decision on the case in writing.

“This is a very important case to the tribe — it’s probably the most important case to come through the court in the four years I’ve been here,” she said. “I will make my decision in writing — I will make this decision quickly.”

McNamara’s case, which was heard immediately after Harrington’s, hinges solely on math, which is addressed in Article XIII “Recall, removal and vacancies,” Section 1A in the tribal constitution, which states: “The chairperson, vice-chairperson or tribal council members may be subject to recall at any time under the following procedure: A recall petition signed by a number of registered voters equaling 20 percent of the registered voters who voted in the last general election is presented to the election board.”

During its special meeting March 2, the tribe’s election board verified 171 signatures for McNamara out of the 856 voters in the last general election, which validated his petition and placed him alongside Harrington on the recall election ballot.

McNamara’s complaint argues that 171 signatures is only 19.97663 percent of 856 voters, which would not equal 20 percent.

“The constitution does not say a number of registered voters around 20 percent, therefore you need 172 signatures,” Elhart said. “In this instance, it’s a very clear constitutional mandate — there is no authority for close ... close only counts in horseshoes and hand grenades.”

Alvarado-Jorquera, the election board’s attorney, said this could be looked at another way.

“The rationality is very simple ... 20 percent of the 856 registered voters is 171.2,” he said. “The election board, faced with the decision to round up, round down ... does that 0.2 require another signature?”

Following the arguments in McNamara’s case, Judge Gasco did not issue an immediate ruling.

“We’ll issue an order in this matter, at the latest, by noon on Friday,” Gasco said.